On April 17, 2007, the Department of Labor (DOL) issued notice of proposed changes to the child labor regulations under the Fair Labor Standards Act (FLSA). Wage and Hour Division Administrator Paul DeCamp described the changes as "the most ambitious and far-reaching revisions to the child labor regulations in the last 30 years." Under the FLSA, 14- and 15-year-olds may only be employed in occupations specifically authorized by the Secretary of Labor. On the other hand, 16- and 17-year-olds may be employed in any occupation except those identified by the secretary as "particularly hazardous" or "detrimental to their health or well-being." The proposed changes to the regulations would impose new bans on particularly hazardous activities for 16- and 17-year olds, such as working at poultry slaughtering plants, riding on forklifts, fighting forest fires and operating non-paper product balers and compacters. The proposed changes to the regulations would expand employment opportunities to 14- and 15-year-olds in certain areas, such as information technologies, but would prohibit their employment in other areas such as door-to-door sales. These sweeping proposals will affect the employment relationship between many employers and employees under the age of 18. If your company has employees under the age of 18, it would be prudent to review the proposed regulations (accessible at www.youthrules.dol.gov) to see how they could impact your business. The proposed regulations are available online at the DOL's web site, and the DOL is accepting comments on the proposed regulations until July 16, 2007. Comments can be made online or they can be forwarded to Waller Lansden for presentation to the DOL. If you would like your comments to be included, please contact Andy Naylor or any attorney in Waller Lansden's Labor and Employment Group.
Gimme a Break!
There are currently hundreds of meal and rest break class actions pending in courts across the nation, leaving many employers wondering, to what are my employees entitled? This can be especially confusing for employers considering 19 states have their own meal break regulations and a smaller sub-section mandate rest breaks.
As of Jan. 1, 2007, there were seven states that required on-the-clock rest breaks for their employees (Illinois enacted a rest break statute as well, but it only applies to hotel room attendants). They are California, Colorado, Kentucky, Minnesota, Nevada, Oregon and Washington. Each of these states requires that employees be given one 10-minute, paid rest break for every four hours worked, or major portion thereof, in addition to the required meal break (Minnesota's rest break law does not mandate a certain amount of time. Instead, it allows employees sufficient time to utilize the nearest restroom). Therefore, an employee working an eight-hour shift would be entitled to two 10-minute breaks and his meal break. Tennessee, however, does not entitle its employees to rest breaks, but does require employees working more than six hours to provide employees with at least a 30-minute, off-the-clock meal break. Some employers in Tennessee do provide rest breaks, but these are not required under state or federal law.
Employers are left wondering, how do I prove my employees are being given their rest breaks? These breaks are taken on-the-clock and no automatic record is created when an employee takes them. Many employers are creating a written record on the daily schedule. Scheduling rest breaks can act as evidence needed to refute a claim of a missed rest break.
Further, the rest break requirement is less strict than for a meal break. In California, for example, employers must ensure that employees take his or her meal break, and the employer is penalized if the employee misses the meal break, even voluntarily. For a rest break, the employer must merely "provide" the employee with the opportunity to take it. So, for example, if an employee decides he does not want a break, the employer is not penalized. In Colorado, the DOL has taken the position that the ten-minutes of a rest break need not be consecutive. This helps the employer, who only need demonstrate that throughout the employee's shift, he "rested" for a total of ten minutes for each four hours worked.
So, what can you do to protect yourself? First, an employer needs to know which states require rest breaks and which do not. In addition, many employers choose to make these rest breaks mandatory, even if the employee does not want to take them. If one employee decides not to take a break, other employees may feel as though they are not supposed to take them. By actually scheduling them, employees are more likely to be able to take them.
In many other states that do not require rest breaks, such as Tennessee, many employers have been hit with rest break lawsuits because their own internal policies entitle the employees to breaks. Depending on the wording of these policies, employees are arguing that the internal policy created a contract with the employer that is breached every time an employee misses a break. If a handbook has such a policy for states that do not require rest breaks, the language should be tailored to insist the employees are not entitled to rest breaks and that the availability of a break will be governed by each employee's workload on any particular day.
By choosing offense as the best defense, employers can help to save themselves from potential class actions. That way, employers also will know exactly what to say when their employees say "Gimme a break!"
FMLA Headaches
The federal Family and Medical Leave Act (FMLA) has been a source of frustration for many employers since the statute was enacted in 1993, particularly where employee leave issues are impacted by other federal, state or local laws or regulations. The web of regulations and laws has become even more tangled as more and more states enact FMLA-type statutes.
States that have enacted comprehensive FMLA-type leave protections include California, Connecticut, Hawaii, Maine, Minnesota, New Jersey, Oregon, Rhode Island, Vermont, Washington, Wisconsin and the District of Columbia. Many of these statutes give employers greater leave protection and/or benefits than the FMLA. Connecticut, for example, allows employees with only 1,000 hours of service in the preceding twelve months to take leave in contrast to the 1,250 hour requirement under the FMLA. Vermont allows eligible employees to take up to 24 hours per year in "short-time family leave" for such things as routine dental appointments, certain school activities, etc.
Penalties for violation of these state laws range from reinstatement and back pay (e.g. Connecticut) to the full range of civil remedies available at law, including attorneys fees (e.g. Minnesota).
Although Tennessee has not enacted comprehensive, FMLA-type protections, the state has enacted a law providing expanded parental leave to employees (both men and women) for the birth or adoption of a child. For employers with 100 or more employees, the maximum leave is four months, which is greater than the amount of leave provided under the FMLA.
In developing FMLA policies and procedures, it is imperative to incorporate these state-specific mandates where applicable, some of which are more demanding (or simply different) than federal requirements. For more information about state-specific family and medical leave requirements, contact Waller Lansden.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.